Opinion
Hearing Granted April 14, 1971.
Opinion on pages 330 to 342 omitted
HEARING GRANTED
Gregory S. Jensen, Berrett, Meadows, Lawrence, & Jensen, Redwood City for defendant-appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.
RATTIGAN, Associate Justice.
Count One of an indictment charged appellant John M. Satchell with the murder (Pen.Code, § 187) of James Earl Jordan; Count Two, with assault with a deadly weapon upon the person of James Molinari, with knowledge that the victim was a peace [93 Cal.Rptr. 70]officer engaged in the performance of his duties. (Id., § 245(b)) By amendment, the indictment further alleged four prior felony convictions. Appellant entered pleas of not guilty to both counts. A jury acquitted him under Count Two, but found him guilty of murder in the second degree under Count One. On appeal from the consequent judgment of conviction, he claims prejudicial error by reason as an irregularity in the conduct of the jury and in the instructions given by the trial court. We uphold his contentions in these respects, and reverse the judgment on both grounds.
The principal point raised on the appeal has to do with the undisputed fact that the single alternate juror was permitted to, and did, enter and remain in the jury room for a period of time during which the regular jury was deliberating. Although the record does not show the the trial court received any sworn or other evidence concerning this episode and all the circumstances surrounding it, it and its effect were discussed at a chambers conference called by the judge after the irregularity had been discovered and corrected. Because this discussion is pertinent to the point raised on the appeal, we set forth portions thereof in full, as follows:
'THE COURT: Let the record indicate that we are in Chambers with the defendant present, and his Counsel, Mr. Smith, and the District Attorney, Mr. Collins. It has been called to the Court's attention that the 13th juror was escorted, or allowed to go to the jury room, and was in with the jury for some period of time. I think it's about at least close to an hour, well, just a little short of an hour, that is, that the 13th juror--that is not the Judge--the 13th juror was in the jury room at the time they were deliberating.
'MR. SMITH: Maybe you should call it the alternate juror.
'THE COURT: The alternate juror, yes, and when the Court was made aware of that fact, the Court Ordered the alternate juror removed, and so advised Counsel, and the Court has discussed with Counsel the irregularity in the proceedings. The Court feels it was very much irregular for the alternate juror to be in the jury room. The Court has advised the--particularly the Public Defender, who is Counsel for the defendant, has asked him to consult with his client to see whether there would be a waiver as to the irregularity, whether any Motions for Mistrial would be made, and the record will indicate that the Public Defender has consulted with the defendant, and we are now in Chambers, and the Court will entertain any Motions that are to be made in connection with the irregularity of the proceedings, as far as the alternate juror being in the jury box at the time--in the jury room at the time the jury was deliberating. Mr. Smith, are you going to make a Motion for Mistrial?
'MR. SMITH: At this time we are not going to make a Motion for Mistrial.
'* * *
'THE COURT: * * * Now, your failure to make a Motion for Mistrial leaves the Court in somewhat of a quandary. If there is an acquittal, of course, that is the end of the case. If there is a conviction, the Court just wonders whether, without an express waiver as to the irregularity, whether the question of irregularity can be raised on appeal, which means there is an element of a gamble here, where you are still attempting to retain a point to be raised on appeal, playing it against the possibilities you might get an acquittal. Of course, your failure to make a Motion for Mistrial might well be construed as an implied waiver. Of course, the Court on its own Motion could declare a mistrial. Does the District Attorney have anything?
'MR. COLLINS: Well, Your Honor, it is a case of first impression to me. I think certainly the defendant and his Counsel are fully cognizant of the situation at this time. They are well aware of the situation, and Mr. Smith, the defendant's Counsel, has had the opportunity here to reflect upon the consequences, if any, of this situation, and I would think that his failure to move for a mistrial after consultation with his client, the record should show, I believe, that he [93 Cal.Rptr. 71]has conferred with his client, the defendant, for a period of five or 10 minutes just prior to our going on the record here, I think that it could well be said that his failure to move for a mistrial does constitute an imlied waiver of any irregularity.
'THE COURT: Well, maybe, I think, for the record, he [sic] should get an answer from the defendant himself. Mr. Satchel, the fact is that the matters we have discussed here in your presence has been discussed privately with your Counsel, is that correct?
'THE DEFENDANT: Yes, and I leave the decision of it to my Counsel, he is doing the talking for me.
'THE COURT: Yes, but I want the record to indicate that everything we have discussed here publicly for the record has been discussed by your Counsel with you. He's advised you of the fact that the alternate juror was in the jury room for some period of time while the jury was deliberating, and that that was improper. Is that correct?
'THE DEFENDANT: He advised me of that.
'THE COURT: And what legal Motions should be made you are leaving entirely to your legal adviser, your attorney in this case?
'THE DEFENDANT: Right.
'MR. COLLINS: Could it be said, then, by the defendant that his Counsel's failure to move for a mistrial is
'MR. SMITH [interrupting]: I will object to anything the District Attorney would ask the defendant at this time, may it please the Court.
'MR. COLLINS: I am not asking the defendant anything. * * * I think what has been said by the defendant establishes that the failure by his Counsel to move for a mistrial is with the consent of the defendant.
'THE COURT: Well, that is--yes,--well, let me go one step further. You [addressing appellant] realize that there could be a Motion to--what we call a mistrial, and have a new--complete new trial of this case, that can be made by your legal Counsel, is that correct?
'THE DEFENDANT: Yes.
'THE COURT: Your answer is--speak up loudly.
'THE DEFENDANT: Yes, yes.
'THE COURT: And whether that Motion is made or not, you are placing entirely in the hands of your Counsel, your attorney?
'THE DEFENDANT: Right, yes, sir.
'THE COURT: All right. Well, I think--the Court feels that while there is no express waiver of irregularity, that the defendant has had the opportunity to make a Motion for Mistrial, and the lack of any such Motion being made, the Court construes as an implied waiver, so the Court will allow the jury to continue its deliberations, and that will be--[interrupted] * * *'
The judge then responded to a request for exhibits as received from the regular jurors, and permitted them to continue their deliberations.
The irregularity mentioned, and the above-quoted proceedings which followed its discovery, raise three questions which we state--and answer--as follows:
(1) Did the irregularity constitute trial error? Yes. It amounted to an invasion of appellant's right of trial by jury. (People v. Bruneman (1935) 4 Cal.App.2d 75, 79-81, 40 P.2d 891, approved in People v. Britton (1935) 4 Cal.2d 622, 623, 52 P.2d 217. See Pen.Code, § 1128.)
We are not persuaded to the contrary by the decision cited by the Attorney General for an opposite result. (People v. French (1939) 12 Cal.2d 720, 87 P.2d 1014.) In that case, a similar assignment of error was rejected because, as was shown by uncontradicted affidavit (id., at pp. 770-771, 87 P.2d 1014), the two alternate jurors had been permitted to remain in the jury room with the 'twelve regulars' for only 'a few minutes while the room was being put in order but no deliberations or discussion of the case was had in their presence.' (Id., at [93 Cal.Rptr. 72]p. 770, 87 P.2d at p. 1040 [emphasis added].) In the present case the intruding alternate was with the 'twelve regulars' for a full hour, during which the twelve were deliberating upon a verdict. We must assume the fact last stated, because the present record does not show to the contrary (compare People v. French, supra, at pp. 770-771, 87 P.2d 1014), because each juror--including the alternate--had been instructed to 'freely and fairly discuss with his fellow jurors the evidence and the deductions to be drawn therefrom,' and because various other instructions on the deliberative process had been addressed to the regular jurors without exclusion of the alternate. The French decision is accordingly distinguishable. (See also [as also distinguishable on its facts] People v. Love (1937) 21 Cal.App.2d 623, 628-629, 70 P.2d 202.)
(2) Was the error prejudicial? Yes. The Bruneman decision explicitly points out that 'this was an error so far destructive to the invaded right that the error could not by mere consent be rendered harmless.' (People v. Bruneman, supra, 4 Cal.App.2d 75 at p. 81, 40 P.2d 891 at p. 894. Cf. People v. Britton, supra, 4 Cal.2d 622 at p. 623, 52 P.2d 217.) A critic of the Bruneman-Britton rule would find 'at most harmless error' where the only irregularity has been the 'mere presence' of alternate jurors during the deliberations of the regular jury. (See Note (1936) 24 Cal.L.Rev. 735, 738-739.) However, for the same reasons cited above as distinguishing Bruneman and Britton on their respective facts, we cannot assume in the present case that the intrusion of the alternate juror was limited to his 'mere presence' in the jury room. Hence, the conclusion of prejudice reached in both decisions is controlling here.
(3) Was the error waived for purposes of the present appeal? No. The above-quoted remarks of the trial judge at the chambers conference fairly indicated that appellant would have been granted a mistrial if he had moved for one. The Attorney General now argues that the failure of defense counsel to make such motion (and appellant's assertedly tacit consent to such failure) constituted a waiver of the error for purposes of his appeal. For the reasons next stated, we disagree.
As we view the trial court's finding and pronouncement of an 'implied waiver,' under the circumstances which preceded them as set forth in the above-quoted exchange in chambers, they might well have been correct to the extent that a mistrial (if the court had then declared one upon its own motion) would have been with the implied 'consent of the defendant' so as to preclude him from successfully raising the defense of former jeopardy when confronted with retrial for the same offense. (See Paulson v. Superior Court (1962) 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641; Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275, 14 Cal.Rptr. 657, 363 P.2d 889; Jackson v. Superior Court (1937) 10 Cal.2d 350, 356-357, 74 P.2d 243. Cf. Curry v. Superior Court (1970) 2 Cal.3d 707, 712-713, 87 Cal.Rptr. 361, 470 P.2d 345.) Although the trial court did not make this clearer by forcing the issue (i. e., by requesting a flat objecting to a mistrial on the court's motion rather than merely suggesting a defense motion for one), such 'consent of the defendant' may be inferred from the conduct of his attorney. (Curry v. Superior Court, supra, at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345; People v. Kelly (1933) 132 Cal.App. 118, 122-124, 22 P.2d 526 132 Cal.App. 118, 122-124, 22 P.2d 526.) DB Absent such consent, the propriety of a mistrial declaration is measured by whether there was 'legal necessity' therefor. (Curry v. Superior Court, supra, 2 Cal.3d 707 at p. 713, 87 Cal.Rptr. 361, 470 P.2d 345.) That point is not presented here because the trial court did not declare a mistrial upon its own motion. Appellant having made no motion for the same result, the only question is whether he waived--at the chambers conference--the right to complain of the jury irregularity upon the present appeal.
The right violated by the irregularity was appellant's right to a jury trial. (People v. Bruneman, supra, 4 Cal.App.2d 75 at p. 81, 40 P.2d 891; cf. People v. Britton, supra, 4 Cal.2d 622 at p. 623, 52 P.2d 217.) That right may not be waived by counsel; it can be waived only by the express consent of the defendant (Cal.Const., art. I, § 7; People v. Mosqueda (1970) 5 Cal.App.3d 540, 545, 85 Cal.Rptr. 346), and such waiver will not be inferred from his conduct. (People v. Holmes (1960) 54 Cal.2d 442, 443-444, 5 Cal.Rptr. 871, 353 P.2d 583 and cases cited; People v. Mosqueda supra. See People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008; Witkin, California Criminal Procedure (1963) §§ 334-336, pp. 327-330.) Trial of a felony case by less than the constitutionally-guaranteed jury of twelve (Cal.Const., art. I, § 7) is also valid only upon express waiver by the defendant. (People v. Maes (1965) 236 Ca.App.2d 147, 148-149, 45 Cal.Rptr. 903.) It is clear, therefore, that only an express, curative statement by appellant himself (not by his attorney) would have operated as a definitive waiver of the jury irregularity in question. As he made no such express statement, during the above-quoted exchange in chambers or otherwise, we conclude that he did not waive the irregularity for purposes of the appeal. As the irregularity otherwise constituted prejudicial error, it requires reversal of the judgment as hereinafter ordered.
Appellant's second contention (which we also sustain) requires this brief summary of the evidence: Appellant and Jordan (the victim) engaged in a heated argument on a public street. Appellant 'shoved' Jordan and went to his (appellant's) parked automobile. Jordan followed and the argument resumed, whereupon appellant alighted from his car holding a gun, shot Jordan and drove off. Jordan died of his would which was inflicted with a shotgun. A sawed-off shotgun was found [93 Cal.Rptr. 72]on the street. Its barrel was 11 3/4 inches long. An expended cartridge in the gun matched a live shotgun shell which was found on appellant's person when he was arrested several blocks away, and pellets in the live shell matched pellets found in Jordan's body.
The charge of assaulting Officer Molinari (upon which appellant was acquitted) arose from the circumstances immediately preceding his arrest.
Testifying in his defense, appellant admitted shooting Jordan with a shotgun, but claimed in effect that he had fired in self-defense. Another defense witness testified that Jordan had a gun in his hand before the fatal altercation; the prosecution's eyewitnesses had not seen Jordan with a gun. Appellant did not identify the shotgun found in the street as the one used in the shooting, but said that it was similar in appearance and that he had thrown the latter weapon from his automobile after having driven from the scene. He testified that he had possession of the shotgun for a few hours before the shooting. He admitted fur prior felony convictions.
The trial court instructed the jury in the language of CALJIC 301 (Revised) (defining murder and malice), 302 (classifying the degrees of murder) and 302-A (defining murder in each degree), but effectively precluded a first-degree murder verdict by ruling out first-degree felony murder under Penal Code section 189 and by [93 Cal.Rptr. 74]not instructing on the elements of intent, deliberation and premeditation requisite to first-degree murder otherwise. (See CALJIC 303 [Revised].) Relative to second-degree murder as such, and to 'second-degree felony murder,' the court next gave the relevant substance of paragraphs (1), (2) and (3) of CALJIC 305 (Revised), followed by the language of CALJIC 746, 746-A, 746-D, 747 and 748. Instructions were also given concerning voluntary manslaughter and justifiable homicide predicated upon the evidence of self-defense.
Unless otherwise indicated, all references to 'CALJIC' herein are to California Jury Instructions--Criminal (rev. ed. 1958) or, where applicable, to the 1967 Supplement thereto (as distinguished from the third edition (1970), which had not been published when the present case was tried).
Giving CALJIC 302-A, the court stated as follows:
The court instructed in these respects as follows [bracketed paragraph numbers added for reference]:
CALJIC 310, 310 [Revised], 308-A, and 311.
CALJIC 322, 322-A, 327, 327-A.
The instructions on the 'second-degree felony murder rule' (see fn. 4, ante, paragraphs 4-9) were obviously given on the strength of the evidence that at the time of the shooting appellant was a pastconvicted felon in possession of a concealable firearm (Pen.Code, § 12001) and, hence, was then committing a felony in violation of Penal Code section 12021 (hereinafter 'section 12021'). The evidence of the use to which he put the weapon--in shooting Jordan--does not in itself support the instructions in question, because his act of felonious assault by gunfire was an 'integral part of the homicide * * *included [93 Cal.Rptr. 75]in fact within the [murder] offense charged.' (People v. Ireland (1969) 70 Cal.2d 522, 538-540, 75 Cal.Rptr. 188, 198, 450 P.2d 580, 590; People v. Sears (1970) 2 Cal.3d 180, 186, 187-188, 84 Cal.Rptr. 711, 465 P.2d 847.) Thus, the second-degree felony murder instructions were proper only if appellant's evident violation of section 12021 supported them.
As pertinent herein (i. e., as last amended by Stats.1965, ch. 931, § 1, p. 2545), section 12021 read as follows:
In People v. Ford (1964) 60 Cal.2d 772, p. 795, 36 Cal.Rptr. 620, p. 635, 388 P.2d 892 p. 907, the Supreme Court stated the so-called 'second-degree felony murder rule' as follows: 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen.Code, § 189) constitutes at least second-degree murder. (Citations.)' That court has repeatedly cited the Ford statement of the rule (People v. Ford (1966) 65 Cal.2d 41, 57-58, 52 Cal.Rptr. 228, 416 P.2d 132 [second decision]; People v. Williams (1965) 63 Cal.2d 452, 457, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Ireland (1969) 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Nichols (1970) 3 Cal.3d 150, 163, 89 Cal. 721, 474 P.2d 673), but at the same time has limited its operation. Under the more recent decisions dealing with the rule, the court has held the only such felonies as are in themselves 'inherently dangerous to human life' will support its application, and that the assessment of a given felony for such inherent danger requires that it be examined 'in the abstract,' not in terms of the facts of the particular case. (People v. Williams, supra, 63 Cal.2d at p. 458, 47 Cal.Rptr. 7, 406 P.2d 647 [fn. 5]; People v. Phillips, supra. Cf. People v. Nichols, supra. See Witkin, California Crimes (1969 Supp.), § 325A, pp. 114-115.) The limitation was deliberately imposed, and for cause; the Phillips court explicitly attributed it to recognition 'that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application,' and that it has been abandoned in some jurisdictions and widely criticized. (People v. Phillips, supra, 64 Cal.2d at pp. 582, 583, 51 Cal.Rptr. at p. 232, 414 P.2d at p.340 [fns. 5, 6 and 7 and accompanying text].) The essential question thus presented here is whether a violation of section 12021 by an ex-felon, viewed 'in the abstract,' is 'inherently dangerous to human life' so as to support the second-degree felony murder instructions which were given.
We first face several decisions which appear support an affirmative answer to the question. (People v. Robillard (1960) 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295; People v. Ford, supra [1964], 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Ford, supra [1966], 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132; People v. Schader (1965) 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Hudgins (1965) 236 Cal.App.2d 578, 46 Cal.Rptr. 199; People v. Lovato (1968) 258 Cal.App.2d 290, 65 Cal.Rptr. 638; People v. Asher (1969) 273 Cal.App.2d 876, 78 Cal.Rptr. 885.) Robillard states in a dictum (People v. Robillard, supra, 55 cal.2d at p. 98, 10 Cal.Rptr. 167, 358 P.2d 295), and Schader and Hudgins hold (People v. Schader, supra, 62 Cal.2d at p. 732, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Hudgins, supra, 236 Cal.App.2d at p. 586, 46 Cal.Rptr. 199), that a violation of section 12021 by an ex-felon may establish an attendant homicide as second-degree murder, but none of these holds or states that the violation is 'inherently dangerous to human life.' That proposition was first stated in the two Ford decisions. (People v. Ford, supra [1964], 60 Cal.2d 772 at p. 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Ford, supra [1966], 65 Cal.2d 41 at p. 58, 52 Cal.Rptr. 228, 416 P.2d 132.) Lovato follows the Ford statements in a dictum (People v. Lovato, supra, 258 Cal.App.2d at pp. 294-295, 65 Cal.Rptr. 638); Asher follows the Ford statements and the Lovato dictum. (People v. Asher, supra, 273 Cal.App.2d at pp. 897-901, 78 Cal.Rptr. 885.)
Significantly, the defendant in the Ford decisions had caused a homicide while engaged in the commission of a felony (kidnapping) [93 Cal.Rptr. 76]in addition to violating section 12021. (People v. Ford, supra [1964], 60 Cal.2d 772 at p. 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Ford, supra [1966], 65 Cal.2d 41 at p. 58, 52 Cal.Rptr. 228, 416 P.2d 132.) The same was true in most of the other decisions cited above. (People v. Robillard, supra, 55 Cal.2d 88 at p. 98, 10 Cal.Rptr. 167, 358 P.2d 295 [driving a stolen vehicle and automobile looting]; People v. Schader, supra, 62 Cal.2d 716 at pp. 731-732, 44 Cal.Rptr. 193, 401 P.2d 665 [robbery or conspiracy to rob]; People v. Asher, supra, 273 Cal.App.2d 876 at p. 882, 78 Cal.Rptr. 885 [robbery]. Compare People v. Hudgins, supra, 236 Cal.App.2d 578 at p. 580, 46 Cal.Rptr. 199 [defendant acquitted of burglary]; People v. Lovato, supra, 258 Cal.App.2d 290, 291, 292-293, 65 Cal.Rptr. 638.)
Of greater significance, though, are the facts that the two Ford decisions are the precedents for the proposition that violation of section 12021 by an ex-felon is 'inherently dangerous to human life'; that only the second Ford decision succeeded (in point of time) the Williams holding that the felony underlying application of the second-degree felony murder rule must be examined 'in the abstract' to determine such inherent danger (People v. Williams, supra, 63 Cal.2d 452 at pp. 457-458, 47 Cal.Rptr. 7, 406 P.2d 647 [fns. 4, 5]. Cf. People v. Phillips, supra, 64 Cal.2d 574 at p. 582, 51 Cal.Rptr. 225, 414 P.2d 353); and that, on this point, the second Ford decision merely restated the proposition in the language of the first one. (See People v. Ford, supra [1966], 65 Cal.2d 41 at pp. 57-58, 52 Cal.Rptr. 228, 416 P.2d 132; People v. Ford, supra [1964], 60 Cal.2d 772 at p. 795, 36 Cal.Rptr. 620, 388 P.2d 892.) Under these circumstances, we find no authority controlling the question whether a violation of section 12021 by a past-convicted felon is 'inherently dangerous to human life' when examined 'in the abstract' as the Williams-Phillips precept requires.
Heeding that precept in the absence of such authority, we answer the question in the negative. Possession of a concealable firearm by an ex-felon is unquestionably 'dangerous' in terms of its potential; the statute prohibiting it rests upon this premise. (See People v. Washington (1965) 237 Cal.App.2d 59, 66, 46 Cal.Rptr. 545.) The Legislature, however, has not defined the act as inherently dangerous: it has, in fact, imported otherwise by providing that it can be a misdemeanor (§ 12021, quoted in fn. 7, ante) and, more recently, by amending the statute to limit the class of ex-felons to which it applies. (See § 12021 as amended by Stats.1970, ch. 1345, § 1, p. ----.)
The real danger in the prohibited possession depends upon the proclivities of the possessor and the use to which he puts the weapon, not upon the mere possession thereof: in other words, it depends upon the particular 'facts' of any given case, and we may not look to those facts in assessing inherent danger to human life. (People v. Williams, supra, 63 Cal.2d 452 at p. 458, 47 Cal.Rptr. 7, 406 P.2d 647 [fn. 5]; People v. Phillips, supra, 64 Cal.2d 574 at p. 582, 51 Cal.Rptr. 225, 414 P.2d 353.) Disregarding them (i. e., examining the prohibited act of possession 'in the abstract,' as we are required to do), and having in mind the definition of 'inherently,' we [93 Cal.Rptr. 77]conclude that the mere possession of a concealable firearm by an ex-felon is not inherently dangerous to human life. Consequently, the trial court erred in giving the instructions on 'second-degree felony murder.' As those instructions may well have accounted for the verdict, it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, 254.) We therefore reverse on this ground as well.
It appears to us that the Asher court did precisely this--i. e., examined the 'facts' of the particular case-when it stated of the ex-felon appellant (who had shot a robbery victim with a concealable firearm) that he was 'committing a felony inherently dangerous to human life' by violating section 12021 'whether * * * [he] * * * knowingly armed himself to commit robbery or to settle any altercations in which he might become engaged.' (People v. Asher, supra, 273 Cal.App.2d 876 at p. 899, 78 Cal.Rptr. 885 at p. 899.) For this reason in particular, we discount Asher as controlling precedent and the Attorney General's arguments based upon the just-quoted statement.
The adjective 'inherent' means '[f]irmly or permanently contained or joined; infixed; indwelling.' (Fackrell v. City of San Diego (1945) 26 Cal.2d 196, 204, 157 P.2d 625, 629 [citing Webster's New Int. Dict. (2d ed.).] See also Webster's New Int. Dict. (3d ed. 1967) p. 1163 ['Inherent * * * structural or involved in the constitution or essential character of something: intrinsic; essential * * *']. Its synonyms are 'ingrained, intrinsic, essential, constitutional * * *' Webster's Dict. of Synonyms (1951) p. 456.) The cognate adverb 'inherently' imports the same meanings.
The same is true of appellant's mere possession of the sawed-off shotgun, as such, without reference to his status as an ex-felon. (See Pen.Code, § 12020.)
Certain other contentions advanced by appellant involved the trial court's disposition of questions which were posed by the jurors and which fairly indicated that they had become confused by the 'second-degree felony murder' instructions in relation to those pertaining to self-defense. Omission of the former at retrial will prevent a recurrence of this problem. Other points raised by appellant need not be discussed.
The judgment of conviction is reversed.
DEVINE, P. J., and CHRISTIAN, J., concur.
'All murder which is perpetrated by the means of poison or lying in wait, torture, or by any other kinds of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, burglary, mayhem, or any other act punishable under Section 288 of the Penal Code--and we have no such act here--is murder of the first degree, and all other kinds of murder are of the second degree.' (Emphasis added.)
' Murder of the second degree is also the unlawful killing of a human being with malice aforethought, when there is manifested an intention unlawfully to kill a human being, but the evidence is insufficient to establish deliberation and premeditation.
' Murder of the second degree is also the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base antisocial purpose and with wanton disregard for human life.
' When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.
' The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a direct causal result of the commission of a felony inherently dangerous to human life, namely, the crime of possession of a concealable firearm by a felon, and where there was in the mind of the perpetrator the general intent to commit such crime, is murder of the second degree.
' The general intent to commit the crime of possession of a concealable firearm by a felon and the commission of such crime must be proved beyond a reasonable doubt.
' Every person who has been convicted of a felony and who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person, is guilty of a crime.
' The law that I have just stated to you applies to every person convicted of a felony, whether under the laws of this State or any other State, and it is not a necessary element of the crime charged against the defendant in Count 1 of the--or in this particular case--that the person so convicted of a felony shall have served a term of imprisonment by reason of such conviction.
' The words 'pistol', 'revolver', and other firearms capable of being concealed upon the person as such words are used in the law of this case, apply to and include all firearms having a barrel less than 12 inches in length.
' And in connection with the carrying of the weapon, you are instructed that no actual concealment nor carrying is necessary, and you are also instructed that no specific purpose or intent is an essential element of the offense of possession of a concealable weapon by a felon.'
'Any person who is not a citizen of the United States and any person who had been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or who is addicted to the use of any narcotic drug, who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison not exceeding 15 years, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both.'